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If Congress can't do it, the courts will repeal 'Don't ask, don't tell'

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Despite Tuesday's failure in the Senate to repeal "Don't ask, don't tell," (DADT), the law which upholds discrimination as the law of the land, a federal judge may have started a domino effect of legal challenges to the current discriminatory law which endangers the lives of our military service men and women.

On Friday, in a Tacoma, WA courtroom, U.S. District Judge Ronald B. Leighton ordered the Air Force to reinstate Air Force Reserve Major Margaret Witt, an Air Force Reserve Flight Nurse discharged under DADT in 2007, "at the earliest possible moment."

Judge Leighton's ruling was based on a U.S. Court of Appeals established standard of review that put the burden on the military to show why Witt's discharge was necessary to the government's interest, such as the preservation of unit morale, discipline, and order. This standard of review shifted the judge's focus from whether or not the law itself is justified to ruling on the personal circumstances of each case separately.

Witt's lawyers, led by the American Civil Liberties Union (ACLU) effectively asserted that Major Witt was well respected and liked by her colleagues, and that her sexual orientation never caused problems in her unit.

In his 15-page opinion, Judge Leighton said that testimony had showed that Witt "was an effective leader . . . and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission," leading Leighton to conclude that "suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion."

Air Force lawyers had argued that Witt's reinstatement would result in the inconsistent enforcement of DADT, an argument Leighton labeled "unassailable." The government also argued that military personnel decisions cannot be run by unit referendum.

Major Witt had joined the Air Force in 1987 and was suspended under in 2004, just short of retirement, when military commanders were tipped off to her being gay, when the disgruntled husband of a civilian woman she was having an affair with, reported her to military authorities.

Sources: The Washington Post, The Philadelphia Inquirer, The New York Times, Wikipedia

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